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Wal-Mart Takes Its Sex Discrimination Fight to the Supreme Court

Posted by David Bario

After a federal district court judge certified the largest employment class ever in a sex discrimination case against Wal-Mart in 2004, the company turned to Gibson, Dunn & Crutcher's Theodore Boutrous, Jr., to undo the damage. Boutrous has been hammering away at the certification decision in Dukes v. Wal-Mart ever since, with limited success. On Thursday, he pushed to put the case to rest once and for all with a petition for certiorari to the U.S. Supreme Court.

Boutrous's 34-page petition asks the high court to review an April en banc decision by the U.S. Court of Appeals for the Ninth Circuit that largely affirmed the 2004 certification order. "The class certified by the district court was estimated to include over 1.5 million former and current female Wal-Mart employees who held different jobs in different stores in different states under the supervision of different managers," Boutrous writes in the petition. "The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined--making it the largest employment class action in history by several orders of magnitude….The majority decision conflicts with every pertinent decision of this Court and many decisions of other circuits on numerous important, recurring issues in class action litigation, both in discrimination cases and generally."

As our colleague Andrew Longstreth at The Am Law Litigation Daily reports, Wal-Mart's brief strikes at the standard the Ninth Circuit used in affirming the district court's certification ruling, arguing that the court exacerbated an already-existing circuit split on the issue. Boutrous also asserts in the petition that the Ninth Circuit didn't adequately address the class's lack of commonality. (On the brief with Boutrous were Gibson Dunn partners Theodore Olson, Mark Perry, and Rachel Brass.)

Cohen Milstein Sellers & Toll partner Joseph Sellers, who is co-lead counsel for the plaintiffs, told The National Law Journal's Tony Mauro that Wal-Mart's cert petition takes "the kitchen sink approach to challenging the pursuit of civil rights class actions."